STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YACOB MOROWATI, )

)

Petitioner, )

vs. ) CASE NO. 89-3197

)

TAMPA GENERAL HOSPITAL, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 8, 1989, at Tampa, Florida.

APPEARANCES

For Petitioner: Yacob Morowati, Pro Se

P. O. Box 270489

Tampa, Florida 33688

For Respondents: D. John Dinkel, III, Esquire

P. O. Box 1531 Tampa, Florida 33601

STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against in employment by Tampa General Hospital by reason of Petitioner's age, national origin, or in retaliation because Petitioner had filed a complaint with EEOC against a former employer.

PRELIMINARY STATEMENT

By Petition for Relief dated May 26, 1989, Yacob Morowati, Petitioner, alleges that Tampa General Hospital, Respondent, has violated the Human Rights Act of 1977, as amended, in refusing to re-employ him in 1987 and 1988. In addition to alleging that he was discriminated against because of his age (50) national origin, and in retaliation because Petitioner filed a complaint with EEOC against a former employer, Petitioner also alleges discrimination because he is not of a protected class (racial minority, handicapped or female).

At the hearing, Petitioner called five witnesses, including himself, Respondent called one additional witness and 14 exhibits were admitted into evidence.

Proposed findings were not timely submitted by either party.

FINDINGS OF FACT

1. Petitioner was employed by Respondent on February 15, 1984, as a Pharmacy Technician assigned to the 8 a.m. to 4:30 p.m. shift (Exhibit 12). At this time Petitioner was also working at University Community Hospital and attending classes at the University of South Florida.

   
   

2. In his application for this position, (Exhibit 8) Petitioner indicated he desired to work the night shift. However, Respondent does not hire employees for a particular shift and Petitioner accepted employment on the day shift.

   
   

3. On May 21, 1984, Petitioner completed the Pharmacy Technician Training Program at Tampa General Hospital and was awarded a Certificate showing such completion (Exhibit 7).

   
   

4. Petitioner was unable to work his assigned 40 hours per week with his other job and school and on October 5, 1984, he was transferred from permanent full-time (40 hours per week) to permanent part time (20 hours per week) at his request (Exhibit 13).

   
   

5. Petitioner requested assignment to the night shift but there were few openings on the night shift as that popular shift was given to more senior (in length of service) employees.

   
   

6. Petitioner was unable to be available 20 hours per week, and on November 6, 1984, he was transferred to a part-time position in the Pharmacy PRN pool.

   
   

7. By letter dated November 21, 1984 (Exhibit 4), Petitioner resigned his position at Tampa General Hospital giving as a reason that he had not been assigned to the night shift and could not keep up with his schooling and other job working his assigned hours at Tampa General Hospital.

   
   

8. During the latter stages of Petitioner's employment at Tampa General Hospital, his attendance at work became less frequent and he was considered somewhat unreliable by his supervisors and his coworkers. Although he was given a satisfactory performance rating in July, 1984 (Exhibit 5), shortly before his resignation, his supervisor was contemplating disciplinary action to improve Petitioner's performance or terminate his employment with Respondent.

   
   

9. In late 1986, Petitioner suffered chest pains which he initially thought stemmed from heart problems. However, these were subsequently diagnosed as being of muscular skeletal origin (Exhibit 9).

   
   

10. In February, 1987, Petitioner was dismissed from his position as Pharmacy Technician at University Community Hospital on allegations he was insubordinate.

    
    

11. Petitioner called the office of the Director of Pharmacy at Tampa General Hospital, Monroe Mack, several times to inform him of his situation and tell him that he was trying to get some kind of worker's compensation. Petitioner requested Mack give him a letter of recommendation and provided a list of things he would like covered in the letter of recommendation (Exhibit 10). Mack accommodated Petitioner with a letter (Exhibit 3) dated July 13, 1987.

12. Petitioner contacted Respondent's director of employee relations (Harris) to advise that he would like to return to work at Tampa General Hospital and to obtain Harris's assistance with Mack who had the authority to hire employees in the pharmacy department.

    
    

13. On November 23, 1987, Petitioner submitted an application to Respondent requesting employment (Exhibit 6). In this application, he listed under "hours not willing to work" 7:30 a.m to 2:30 p.m. and indicated he was still pursuing his education.

    
    

14. At Petitioner's request and with the help of Harris, a meeting was arranged with Mack in August, 1988. At this meeting Petitioner again iterated his desire to work the night shift and Mack told Petitioner that he would not rehire Petitioner as a pharmacy technician because his work had not been satisfactory when he earlier worked at Tampa General Hospital and his then co- workers and supervisors had recommended against his reemployment.

    
    

15. Petitioner was born April 1, 1938, (Exhibit 6). Accordingly, when he was denied reemployment in 1988, he was 50 years old.

    
    

16. The only evidence submitted, which in any way relates to age discrimination, is the list of pharmacy technician personnel showing their age, race and gender (Exhibit 1). This shows that in 1988 the oldest pharmacy technician at Respondent working as a technician was 41 years old with the average age of the 33 technicians listed around 30 years old. The list also shows that 28 of the 33 are females and 10 are black.

    
    

17. No evidence was submitted indicating in any manner or implying that older applicants had applied for work at Tampa General Hospital as pharmacy technicians and had been turned down for employment for any reason.

    
    

18. No pattern of such discrimination was shown, nor was any evidence submitted, even suggesting that such a pattern was extant at Tampa General Hospital.

    
    

19. Nor was any evidence submitted that Petitioner was not rehired at Tampa General Hospital in retaliation for filing.a complaint with the Equal Employment Opportunities Commission against his former employer (presumably University Community Hospital).

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

21. While it is recognized that most of the findings of fact noted above are totally irrelevant to the charge of discrimination, they are included solely because those facts comprise the evidence presented.

    
    

22. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person because of that person's race, color, religion, sex, national origin, age, handicap, or marital status. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 USC Section 2000 et seq. Harris v. School Board of Leon County, 400 So.2d 103, 108 n.2 (Fla 1st DCA 1981). As such, federal

    precedent construing the similar provisions of Title VII, should be accorded great deference. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979).

    
    

23. In McDonald Douglas v. Green, 411 US 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 US 240 (1981) the Supreme Court established and clarified the burden of proof in disparate treatment cases. McDonald Douglas places upon the plaintiff the initial burden of proving a prima facie case of discrimination. In a failure to hire or promote case, the plaintiff must prove (1) that he belongs to a protected group; (2) that he was qualified for the job for which the employer was seeking applicants; (3) that he was rejected despite his qualifications; and (4) that after rejection, the position remained opened and the employer continued to seek applicants with plaintiff's qualifications. McDonald Douglas v. Green, at p. 802.

    
    

24. In order to make a prima facie showing of discrimination based on age, sex, national origin, or religion, etc., plaintiff must show (1) that he was qualified for the position available and (2) that there is evidence, circumstantial or direct, from which a fact finder might reasonably conclude that the employer intended to not hire the plaintiff because of his age, sex, religion, national original, etc.

    
    

25. Proving a prima facie case serves to eliminate the most common non- discriminatory reasons for the plaintiff's disparate treatment. See Teamsters

    v. U.S., 431 US 324, 358 and n.44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

    
    

26. Once the plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, non-discriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Burdine, supra at P. 257.

    
    

27. Applying those legal principles to the facts here adduced, it is clear that Petitioner has failed to prove a prima facie case of discrimination. Petitioner has shown that he is 50 years old (or 51 in 1989); that the ages of the pharmacist technicians employed by Respondent are all younger than 50; that a large majority of these employees are female; that approximately one-third of these employees are black; that a few are Hispanic; but not a scintilla of evidence was presented that the race, color, religion, sex, national origin, age, handicap, or marital status of these employees was a factor considered by Respondent when they were employed or other applicants were denied employment. Because Petitioner failed to present a prima facie case the burden never shifted to Respondent to present evidence that the failure to employ Petitioner was not based upon impermissible factors. Nevertheless, Respondent here presented evidence that its refusal to rehire Petitioner was based upon his earlier work record and his stated unwillingness in his application to work between 7:30 a.m. and 2:30 p.m., the normal business day.

28. From the foregoing, it is concluded that Petitioner has failed to prove, by a preponderance of the evidence, that Respondent refused to rehire Petitioner in 1987 and 1988 because of any of the statutorily prohibited reasons.

RECOMMENDATION

It is RECOMMENDED that the Petition for Relief from an unlawful employment practice filed by Yacob Morowati against Tampa General Hospital be DISMISSED.

DONE and ENTERED this 23rd day of August, 1989, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings, The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1989.

COPIES FURNISHED:

Yacob Morowati

P. O. Box 270489

Tampa, FL 33688

E. John Dinkel, III , Esquire

P. O. Box 1531 Tampa, FL 33601

Joe Harris

Post Office Box 1289 Tampa, FL 33601

Margaret A. Jones Clerk

Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

Dana Baird General Counsel

Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

YACOB MOROWATI, EEOC Case No. 150880415

Petitioner, FCHR Case No. 88-8534 vs. DOAH Case No. 89-3197

THE TAMPA GENERAL HOSPITAL, FCHR Order No. 90-018

Respondent.

/

FINAL ORDER DISMISSING PETITION FOR RELIEF FROM AN UNLAWFUL

EMPLOYMENT PRACTICE

Preliminary Matters

Petitioner Yacob Morowati filed a complaint of discrimination with the Commission pursuant to the Human Rights Act of 1977, as amended. Sections 760.01-760.10, Fla. Stat. (1989). Petitioner alleged Respondent The Tampa General Hospital unlawfully discriminated against him on the bases of national origin (Iranian), age (50) and retaliation for filing a complaint against a former employer.

The allegations of discrimination set forth in the complaint were investigated. On May 1, 1989, the Executive Director found no reasonable cause to believe an unlawful employment practice occurred.

On May 30, 1989, Petitioner filed a Petition for Relief from an Unlawful Employment Practice, requesting that a formal proceeding be conducted on the claim. The petition was referred to the Division of Administrative Hearings (DOAH). Fla. Admin. Code Rule 22T-8.016(1). On August 23, 1989, DOAH Hearing Officer K. N. Ayers entered a Recommended Order of dismissal.

Public deliberations were held on October 27, 1989, in Orlando, Florida, before Commissioners Billingslea, Flom and Townsend. Based upon the arguments presented, Petitioner was granted a continuance so that he could submit the transcript of the DOAH hearing and file exceptions to the hearing officer's Recommended Order. Thereafter, public debilitations were held on March 9, 1990, in Tallahassee, Florida, before this panel of Commissioners.

Exceptions to the Recommended Order

Petitioner filed numerous exceptions to the hearing officer's Recommended Order, most of which are factual in nature. Petitioner argues that the hearing officer either failed to make certain findings, made erroneous findings, or failed to clarify and/or emphasize certain findings.

It is the hearing officer's function to consider all of the evidence presented and reach ultimate conclusions of fact based upon competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence supports two inconsistent findings, it is the hearing officer's roll to decide between them. Heifetz v. Department of Business Regulations, 475 So.2d 1277 (Fla. 1st DCA 1985); DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1957).

Except as indicated below, the panel rejects Petitioner's exceptions to the hearing officer's findings of fact made in the Recommended Order as the record contains at least some competent substantial evidence supportive of these factual findings. In the presence of such evidence, the panel will not disturb the hearing officer's findings as to disputed facts. Brevard County Sheriff's Department v. FCHR, 429 So.2d 1235 (Fla. 5th DCA 1983); City of Umatilla v.

PERC, 422 So.2d 905 (Fla. 5th DCA 1982).

Petitioner's exception regarding the hearing officer's finding that Petitioner was employed by Respondent on February 15, 1984, as a pharmacy technician assigned to the 8:00 a.m. to 4:30 p.m. shift should be granted. Exhibit 12, which was introduced at the DOAH hearing, shows that Petitioner was assigned to the 8:00 a.m. to 4:30 p.m. shift effective February 17, 1984. As the beginning date was either misstated by the hearing officer or incorrectly reflected in the Recommended Order due to a typographical error, the panel finds that such finding should be modified to reflect the correct date.

Petitioner made numerous exceptions to the hearing officer's Conclusions of Law. Summarized, they are:

1. Petitioner believes that there is much direct and indirect evidence to substantiate Petitioner's claims of discrimination;

   
   

2. The hearing officer failed to include highly relevant facts and law in the Recommended Order; and

   
   

3. Petitioner met his burden with regard to establishing a prima facie case of discrimination.

The only exception that has merit is Petitioner's claim that he met his burden of establishing a prima facie case. On page 6 of the Recommended Order, the hearing officer stated:

In a failure to hire or promote case, the plaintiff must prove (1) that he belongs to a protected group; (2) that he was qualified for the job for which the employer was seeking applicants; (3) that he was rejected

despite his qualifications; and (4) that after rejection, the position remained opened and the employer continued to seek applicants

with plaintiff's qualifications. McDonald Douglas v. Green, at P. 802.

Petitioner clearly met his burden in this regard. The evidence shows that he belongs to a protected group, he was qualified, he was rejected, and after rejection the position remained open. Therefore, the panel accepts Petitioner's objection and modifies the Recommended Order to show that Petitioner did in fact establish a prima facie case.

Petitioner failed, however, to show by indirect evidence that Respondent's articulated reasons for its employment decision, i.e., Petitioner's earlier work record and his inability to work between the hours of 7:30 a.m. and 2:30 p.m., were pretextual McDonnell Douglas Corp. v Green, infra. Moreover, as there is no direct evidence in the record to substantiate Petitioner's discrimination claim, the panel rejects Petitioner's other exceptions to the Conclusions of Law and adopts the hearing officer's Recommended Order with the above mentioned modifications.

Findings of Fact

We have considered the hearing officer's Findings of Fact and are mindful of the record in this cause. Except as previously discussed herein, the hearing officer's findings are supported by competent substantial evidence and are hereby adopted. Section 120.57(1)(b)10, Fla. Stat. (1989).

Conclusions of Law

Except as previously discussed herein, we agree with the hearing officer's analysis of the legal issues and conclusions based upon the factual findings.

Accordingly, we adopt the hearing officer's conclusions as modified.

Dismissal

The Petition for Relief from an Unlawful Employment Practice and the complaint of discrimination are DISMISSED with prejudice.

The parties have the right to seek judicial review of this Order. The Commission and the appropriate district court of appeal must receive a notice of appeal within 30 days of the date this Order is filed with the clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in Florida Rules of Appellate Procedure 9.110(b)(c).

DONE AND ORDERED this 3rd day of April 1990. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Geraldine F. Thompson, Panel Chairperson;

Commissioner John W. Daniel Commissioner Jack Robertson.

FILED this 7th day of May 1990 in Tallahassee, Florida.

Margaret A. Jones

Clerk of the Commission

Copies Furnished:

Yacob Morowati, Petitioner

E. John Dinkel, III, Attorney for Respondent

K. N. Ayers, DOAH Hearing Officer

Danica W. Parker, Legal Advisor for Commission Panel

Docket for Case No: 89-003197

Orders for Case No: 89-003197